Breaking Down Supreme Court Options After Colorado Trump Ban
Reaction to the decision, and which other states are considering something similar
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Good morning,
Even the IRS appears to have some holiday spirit! It is waiving $1 billion in tax penalties for 4.7 million individuals, businesses and organizations who owe back taxes.
💵 You will still need to pay the taxes, just not the late fees — averaging about $200 for each affected taxpayer. About 70% of those impacted have household incomes below $100,000.
The reason: the IRS suspended its mailing of automatic reminders to pay overdue taxes during the pandemic — it is something they’re about to start again.
Have a good one!
Mosheh, Jill, & Lauren
🗞 WHAT U.S. SUPREME COURT COULD DO AFTER COLORADO TRUMP BAN
We are learning more about the 213-page Colorado Supreme Court decision we first told you about yesterday.
In the bombshell ruling, a 4-3 majority decided Tuesday that former President Trump is ineligible to appear on the election ballot because he engaged in insurrection.
Trump’s campaign says it will appeal the decision to the U.S. Supreme Court—making clear that key 2024 election issues are set to go before the nation’s highest court before the first primary vote is cast.
SECTION 3
The Colorado Supreme Court is the first in the nation to find that Section 3 of the 14th Amendment — which disqualifies people who engage in insurrection against the Constitution after taking an oath to support it — applies to Trump.
📖 The Civil War-era 14th Amendment says: “No person shall ... hold any office, civil or military, under the United States ... who, having previously taken an oath ... as an officer of the United States ... to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
THE CASE
In September, several law firms and Citizens for Responsibility and Ethics in Washington, filed a lawsuit on behalf of six voters in Colorado requesting that Trump be barred from the state’s 2024 election ballots because of his role in the insurrection on Jan. 6, 2021.
The 4-3 ruling reverses a Denver district judge’s finding last month that Section 3 did not apply to the presidency.
The justices did affirm the district judge’s other key conclusions: that Trump’s actions before and on Jan. 6, 2021, constituted engaging in insurrection, and that courts had the authority to enforce Section 3.
AS GOES COLORADO?
At least 16 other states currently have pending legal challenges to Trump’s eligibility for office under the 14th Amendment, according to a database maintained by Lawfare. Here’s how they break down:
Four of these lawsuits — in Michigan, Oregon, New Jersey and Wisconsin — have been filed in state courts.
Eleven lawsuits — in Alaska, Arizona, Nevada, New York, New Mexico, South Carolina, Texas, Vermont, Virginia, West Virginia and Wyoming — have been filed in federal district courts.
Cases in two of these states, Arizona and Michigan, were initially dismissed by a lower court but have been appealed. Another challenge has also been made in Maine.
Florida: A federal judge in Florida was the first to reject a 14th Amendment lawsuit, ruling in August that a lawyer and other voters who challenged Trump’s candidacy didn’t have standing to bring the litigation—but not making any decisions on the merits of whether Trump is eligible to run for office.
🚨Why this case matters: Trump lost Colorado by 13 percentage points in 2020 and he does not need the state to win. But, his concern is that must-win competitive states follow Colorado’s lead and also bar him.
WHAT NOW?
Trump is going to appeal the decision to the U.S. Supreme Court. The justices have a number of ways to look at the case and issue a narrow or wide-ranging opinion.
1: They could choose not to take the case. Given the ramifications, this is unlikely.
2: They could rule on the merits of the case, looking at whether Section 3 of the 14th amendment applies to presidential candidates.
3. They could focus on the legal definition of insurrection (whether Jan 6 meets that definition) and first amendment issues: whether Trump was engaged in free speech in the lead up to Jan 6.
4: They could rule on the process, looking at whether Colorado and 49 other state courts have jurisdiction to determine if Trump engaged in insurrection. The question: Do courts have power to ban candidates from ballot using 14th amendment or should it fall on the voters?
They could also go back to a judicial precedent from 1869 that found that Congress needs to pass a law regarding actually executing Section 3.
One important note: Given the fallout from the 5-4 Bush v. Gore decision in 2000 that fell along partisan lines, there is talk in the legal community that this Supreme Court may look to find consensus (even 9-0) so as not to further inflame partisan tensions. The current court is made up of 6 conservatives and 3 liberals.
Note: Should the US Supreme Court take up the case, the Colorado state decision will be stayed until there is a resolution. Translation: Trump’s name will likely still be on the Colorado ballot for the March 5 primary.
WHAT THE COMPETITION SAYS:
His fellow Republicans and even RFK Jr, who’s running as an independent, have slammed the decision to bar Trump from the ballot.
Chris Christie said, "I do not believe Donald Trump should be prevented from being president of the United States by any court."
Nikki Haley said, “We don't need to have judges making these decisions, we need voters to make these decisions."
Vivek Ramaswamy said he plans on withdrawing from Colorado's primary in solidarity with Trump, and called on others to do the same.
President Biden said there was no question that former President Trump was responsible for leading an insurrection but said the ballot decision is up to the courts.
BOTTOM LINE
This is not the only case before the court. Trump's political future and the presidential election could hinge on a series of legal issues that the Supreme Court is set to consider in the coming months — including whether Trump is immune from criminal prosecution for actions he took in office and the scope of an obstruction charge that is central to his federal Jan. 6 case.
✔︎ Mo News Reality Check: Trump is still facing legal challenges across the country, including four criminal trials. But one of the main arguments against the Colorado decision is that Trump has not been charged explicitly with “insurrection” or “rebellion” in any of his cases.
In the federal election interference case, Trump was charged with conspiracy to defraud the U.S., conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding, and conspiracy against rights. The case is scheduled to go to trial in early March.
“I am disturbed about the potential chaos wrought by an imprudent, unconstitutional, and standardless system in which each state gets to adjudicate Section Three disqualification cases on an ad hoc basis,” he wrote.
⏳ SPEED READ
🚨NATION
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📌 President Biden getting frustrated that it is hard to showcase his infrastructure accomplishments (CNN)
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🎬 SPORTS & ENTERTAINMENT
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📌 Oregon State and Washington State near agreement to join West Coast Conference as affiliate members (ESPN)
🗓 ON THIS DAY: DECEMBER 21
1913: The New York World published the first modern crossword puzzle.
1937: The classic animated movie Snow White and the Seven Dwarfs premiered, establishing Walt Disney as one of the world's most innovative and creative moviemakers.
1970: Elvis meets President Nixon. Backstory
1988: Pan Am flight 103 Pan Am flight 103 exploded over Lockerbie, Scotland, because of a terrorist bombing; in 2003 the government of Libya accepted responsibility for the explosion and in 2004 agreed to compensate the families of the victims.
2012: The music video for South Korean singer PSY's song Gangnam Style became the first video on YouTube to garner one billion views.